DOYLE v. ENGLAND

The opinion of the court was delivered by: Ricardo M. Urbina, United States District Judge.

MEMORANDUM OPINION
GRANTING THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT;
DENYING THE PLAINTIFF'S MOTION FOR A STAY OF PROCEEDINGS;
DENYING THE PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

Arising out of events occurring during the Navy's 1991 Tailhook
Symposium in Las Vegas, this matter comes before the court on the
defendant's motion to dismiss or, in the alternative, for summary
judgment, and the plaintiff's motion to stay the proceedings or, in the
alternative, for cross-motion for summary judgment. William G. Doyle
("the plaintiff") seeks judicial review pursuant to the Administrative
Procedure Act ("APA"), 5 U.S.C. § 701 et seq., of the Navy's final
agency decision not to correct his Naval record in accordance with the
findings and recommendations of the unanimous Board for Correction of
Naval Records ("BCNR"). The plaintiff alleges that the Navy ("the
defendant"), acting through the Assistant Secretary of the Navy, Carolyn
H. Becraft ("Assistant Secretary"), arbitrarily and capriciously denied
him relief by refusing to correct his Naval records. The defendant argues
that the Assistant Secretary's decision was entirely reasonable. Because
the Assistant Secretary properly exercised her discretion in deciding
that although the Navy chose not to punish the plaintiff, it could
legitimately determine that he did not deserve a promotion, the court
grants the defendant's motion for summary judgment, denies the
plaintiff's motion for a stay of proceedings, and denies the plaintiff's
cross-motion for summary judgment.

II. BACKGROUND

Mr. Doyle is a former Marine Corps Captain, who was assigned to Marine
Fighter Photo Reconnaissance Squadron Three ("VMFP-3") from November 1986
to August 1990. See Compl. ¶ 6. VMFP-3 was known as the "Rhinos"
because of the extended nose of the F-4 aircraft. See id. ¶ 7. During
the 1991 Tailhook Symposium in Las Vegas, former officers assigned to
VMFP-3 planned a "Rhino Hospitality Suite" in the Hilton Hotel. See id.
¶ 9.

On Saturday of the 1991 Tailhook Symposium, Mr. Doyle went to the
"Rhino Suite" and stayed there for the remainder of the evening. See id.
¶ 22. He acknowledges that during the evening, he served drinks from the
Rhino mural drink dispenser.*fn1 See id. ¶ 23; Def.'s Statement of
Material Facts as to Which There Is No Genuine Issue ("Def.'s Statement")
at 1. While Mr. Doyle served drinks from the Rhino dispenser, "several
women obtained
drinks by sucking on the rhino phallus."*fn2 See Compl. 6 23; Def.'s
Statement at 1-2. "At some point, when women were drinking from the rhino
phallus, someone threw plaintiff a pen and told him to mark on the rhino
phallus `how far the woman was able to `deep throat' the dildo.'" Compl.
¶ 25; Def.'s Statement at 2. Mr. Doyle says he "did as he was
directed." Id. ¶ 25. He adds that he was not involved in and did not
observe the "gauntlet" and "did not observe any assaults on any women" at
the Tailhook Symposium. See id. ¶ 28.

As a result of his attendance at the 1991 Tailhook Symposium, the Navy
required Mr. Doyle to travel to Marine Corps Base Quantico, Virginia for
a review of his participation in the Tailhook activities by the
Consolidated Disposition Authority ("CDA"),*fn3 then-Lieutenant General
("LTG") Charles Krulak, U.S. Marine Corps ("USMC"). See id. ¶ 30. As
CDA, LTG Krulak reviewed the evidence concerning Mr. Doyle's attendance
at the Tailhook Symposium, heard Mr. Doyle explain his participation at
the Tailhook Symposium, and evaluated Mr. Doyle's credibility firsthand.
See id. ¶ 32. Based on the hearing, LTG Krulak "concluded that the
allegation [was] completely without merit and that no basis for imposing
punishment under Article 15, [Uniform Code of Military Justice ("UCMJ")],
exist[ed]. . ." Id. ¶ 33. The Navy notes that Mr. Doyle "was not
punished for this actions [sic] and was retained in the Marine Corps."
Def.'s Statement at 2. Furthermore, LTG Krulak recommended that the Navy
fully restore Mr. Doyle's promotion eligibility. See Compl. ¶ 34.

Several years later, the Fiscal Year ("FY") 1996 Marine Corps Major
selection board considered Mr. Doyle for promotion, and the Navy placed
him on the "best qualified" list for possible promotion. See id. ¶
38. Unaware of his conduct at Tailhook, the board selected Mr. Doyle for
promotion. See Def.'s Statement at 2. On September 22, 1995, the
Commandant of the Marine Corps, now-General Krulak, recommended that the
Secretary of the Navy advise the President of the United States to remove
Mr. Doyle's name from the selection list of officers selected for
promotion to the grade of Major. See Compl. ¶ 39; Def.'s Statement at
2. On October 10, 1995, the Secretary of the Navy made the same
recommendation to the President, and the President removed the
plaintiff's name from the Major USMC selection list. See Compl. ¶ 40;
Def.'s Statement at 2. On November 5, 1995, the President approved the
Secretary's recommendation and, as a result, the Navy did not promote
Mr. Doyle to Major. See Def.'s Statement at 2 (citing Administrative
Record ("AR") 5). The plaintiff resigned his commission in the regular
Marine Corps, but stayed in the U.S. Marine Corps Reserve ("USMCR"). See
Compl. ¶ 43-44; Def.'s Statement at 2.

On April 5, 2000, a three-member panel of the BCNR unanimously voted to
grant Mr. Doyle's application for Correction of Naval Record, and
recommended its decision to the Secretary of the Navy for corrective
action. See Compl. ¶ 56. After consideration of the recommendation of
the BCNR, on July 11, 2000, the Assistant Secretary rejected the BCNR's
recommendation and denied Mr. Doyle relief. See AR 12. The Assistant
Secretary noted that in Mr. Doyle's petition, he admitted that he
personally engaged in the conduct that formed the basis for the
Secretary's decision to recommend that the President remove Mr. Doyle
from the promotion list. See id. The Assistant Secretary stated that:

I do not agree that the Secretary's actions in [Mr.
Doyle's] case were unfair. [Mr. Doyle] admitted to
egregious behavior that clearly established his
unfitness for promotion. There is no evidence that the
other officer cited by the BCNR was personally engaged
in the same behavior as [Mr. Doyle] or that his
personal behavior during the Tailhook Symposium was
otherwise comparable to [Mr. Doyle's]. Even if it
were, the fact that another officer may have avoided
the full measure of accountability for his behavior at
Tailhook does not make it unfair or unjust for the
Secretary to take entirely appropriate actions to
assess accountability in this case or others.

In ruling on a motion for summary judgment, the court must draw all
justifiable inferences in the nonmoving party's favor and accept the
nonmoving party's evidence as true. See Anderson, 477 U.S. at 255. A
nonmoving party, however, must establish more than "the mere existence of
a scintilla of evidence" in support of its position. See id. at 252. To
prevail on a motion for summary judgment, the moving party must show that
the nonmoving party "fail[ed] to make a showing sufficient to establish
the existence of an element essential to that party's case, and on which
that party will bear the burden of proof at trial." See Celotex, 477
U.S. at 322. By pointing to the absence of evidence proffered by the
nonmoving party, a moving party may succeed on summary judgment. See id.

In addition, the nonmoving party may not rely solely on allegations or
conclusory statements. See Greene v. Dalton, 164 F.3d 671, 675 (D.C.
Cir. 1999); Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir. 1993). Rather,
the nonmoving party must present specific facts that would enable a
reasonable jury to find in its favor. See Greene, 164 F.3d at 675. If the
evidence "is merely colorable, or is not significantly probative, summary
judgment may be granted." Anderson, 477 U.S. at 249-50 (internal
citations omitted).

B. The Scope of Review

Since this case involves a challenge to a final administrative action,
the court's review is limited to the administrative record. See Fund for
Animals v. Babbitt, 903 F. Supp. 96, 105 (D.D.C. 1995) (citing Camp v.
Pitts, 411 U.S. 138, 142 (1973)). "Summary judgment is an appropriate
procedure for resolving a challenge to a federal agency's administrative
decision when review is based upon the administrative record." Id.
(citing Richards v. I.N.S., 554 F.2d 1173, 1177 n. 28 (D.C. Cir. 1977).
Courts must review a decision regarding the correction of military
records under the APA to determine if the decision was "arbitrary or
capricious" or not based on substantial evidence. See 5 U.S.C. § 706;
Chappell v. Wallace, 462 U.S. 296, 303 (1983).

As the Supreme Court has explained, "[t]he scope of review under the
`arbitrary and capricious' standard is narrow and a court is not to
substitute its judgment for that of the agency." Motor Vehicle Mfrs.
Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). In
reviewing the action of an agency under 5 U.S.C. § 706(2)(A), the
court must determine whether the agency has examined the relevant data
and articulated a satisfactory explanation for its action. See id. "In
thoroughly reviewing the agency's actions, the court considers whether
the agency acted within the scope of its legal authority, whether the
agency has explained its decision, whether the facts on which the agency
purports to have relied have some basis in the record, and whether the
agency considered the relevant factors." Fund for Animals, 903 F. Supp.
at 105 (citing Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 378
(1989)). In addition, the plaintiff has the burden of showing "by cogent
and clearly convincing evidence" that the decision was the result of a
material legal error or injustice. See McDougall v. Widnall,
20 F. Supp.2d 78, 82 (D.D.C. 1998) (internal citations omitted). In the
absence of clear and persuasive evidence to the contrary, courts should
presume that the Secretary and selection boards performed fairly and
lawfully. See Boyd v. United States, 1975 WL 22807 *4 (Ct.Cl.).

C. The Secretary's Actions Were Not Arbitrary or Capricious

In this case, the plaintiff claims that the defendant, acting through
the Assistant Secretary of the Navy, acted arbitrarily and capriciously
when the defendant denied the plaintiff relief based on false assertions
of fact that were contrary to findings, and based on unsupported
evidence. See Compl. ¶ 59, 61; Pl.'s Opp'n to Mot. to Dismiss & Mem. in
Supp. of Pl.'s Cross-Mot. for Summ. J ("Pl.'s Opp'n") at 11-17. The
court concludes that the plaintiff has failed to meet his burden of
showing by cogent and clearly convincing evidence that the decision was
the result of a material legal error or injustice. See McDougall, 20 F.
Supp.2d at 82. In short, the court concludes that the Assistant Secretary
acted within her scope of authority in making her decision, explained her
decision, and relied on facts supported in the record.

The plaintiff charges that the Assistant Secretary's decision was
arbitrary since it was "contrary to the evidence before the BCNR." See
Compl. ¶ 63. This claim lacks merit. The Secretary of a military
department, under procedures established by that Secretary and approved
by the Secretary of Defense, and acting through boards of civilians of
the executive part of that military department, may correct any military
record of that department when the Secretary considers it necessary to
correct an error or remove injustice. See 10 U.S.C. § 1552(a)(1);
Miller v. Lehman, 801 F.2d 492, 496-97 (D.C. Cir. 1986). The D.C. Circuit
has held that although 10 U.S.C. § 1552(a) directs the Secretary to
act through a civilian board, "it leaves no doubt that the final decision
is to be made by him." See Miller, 801 F.2d at 497. The statute confers a
certain amount of discretion on the Secretary, including the discretion
to differ with a board's recommendations where the evidence is
susceptible to varying interpretations. Boyd, 1975 WL 22807 *4.

FURTHER ORDERED that the plaintiff's motion to stay the proceedings
pending a submission of the complete administrative record is DENIED; and
it is

ORDERED that the plaintiff's cross-motion for summary judgment is DENIED.

SO ORDERED.

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